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Advoate Niikhil Shirgaonkar for the complainants
Advocate S. P. Kinkar for the Opponent
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Per Hon’ble Shri. V. P. Utpat, President
:- JUDGMENT :-
Date -29th August 2013
This complaint is filed by the flat owners against the builder and promoter for deficiency in service u/s 12 of the Consumer Protection Act, 1986. Brief facts are as under-
[1] Complainants are son and mother. The Opponent is dealing in the business of construction. The complainants have booked flat in the scheme of opponent known as Amit Bloomfield” situated at S.No.59 of Ambegaon Bk., Pune. The flat is bearing No. C 203 which is located on the second floor of the building named as “C-Calypso”. The agreement was executed between the parties on 17/03/2008. It was duly registered with the sub registrar. The total consideration amount agreed between the parties was Rs.48,54,200/-. Opponent agreed to deliver the possession of the flat on or before December 2009 with maximum grace period of six months. It was agreed that the building will consist of total 7 floors. Eventhough the complainants have made payment as per the schedule the Opponent failed to deliver the possession evenafter grace period of six months from December 2009. The Opponent has challenged the sanctioned plan and decided to construct 12 storied building hence delay was caused for completion of the construction work as well as delivery of possession. The Opponent has demanded Rs.7,42,600/- eventhough the delay was caused at the instance of the Opponent. The complainants were required to stay in rented premises and they had spent Rs.15,000/- p.m. for 24 months. The total amount is Rs.3,60,000/-. The complainants have asked the possession of the flat, compensation towards monetary loss to the extent of 3,60,000/-, compensation for harassment and mental agony to the extent of Rs.5,00,000/- and interest @ 14% p.a. on consideration amount of Rs.48,54,000/- as well as cost of the proceeding.
[2] The Opponent resisted the claim by filing written statement. It has denied the contents of complaint in toto. It is specifically denied by the Opponent that the deficiency in service was caused at their instance. It is the case of the Opponent that this Forum has no jurisdiction to try and entertain the complaint as the value of the claim is Rs.57,14,200/- i.e. more than Rs.20,00,000/-. It is also contended that there is Arbitration Clause in the agreement between the parties hence if any dispute arises between the parties the complainant ought to have approached to the Arbitrator and not to any Court. The opponent has further contended that due to the restrictions imposed by the State Government the plan was changed and delay was caused for construction which was beyond the control of the opponent. It is further contended that the complainant himself is defaulter as he had not paid remaining consideration of Rs.7,42,600/-. The Opponent has prayed for dismissal of the complaint.
[3] Considering the pleadings of both the parties following points arise for my determination. The points, findings and reasons thereon are as follows-
S.No. | POINTS | FINDINGS |
1 | Whether this Forum has jurisdiction to entertain, try and decide the present complaint ? | In the negative |
2 | Whether Opponent has caused deficiency in service ? | Does not survive |
3 | What order ? | Complaint is returned to the complainants for presenting the same before proper Forum |
REASONS-
As to the Point Nos. 1 to 3-
[4] The learned Advocate for the complainant argued before me that this is clear cut case of deficiency in service on the part of the Opponent as the complainants have paid entire consideration amount and the Opponent has failed to deliver the possession of the flat as per the agreement. It is also argued that the Opponent has revised the plan for its own purpose and the construction of the building was increased from 7th floor to 12th floor and there was no fault of the complainants for delaying the project. Per contra the learned Advocate for the Opponent argued before me that the delay was caused due to the notification of the Government and the plan could not be revised and that was beyond the control of the Opponent. It is also argued that non Maharashtrian labors had left the work due to agitation made by the political parties. Hence construction work was stopped and there was no fault of Opponent for delay in the said project. The second limb of argument on behalf of the Opponent is that this Forum has no pecuniary jurisdiction to entertain the present complaint as the valuation of the flat is Rs.48,54,200/- and the complainants have asked damages of Rs.8,60,000/-. The complainants have asked possession of flat. In such circumstances the complaint cannot entertained by the present Forum.
[5] Before considering the merits of the case it is necessary to decide the point of jurisdiction and if this Forum has no jurisdiction to entertain the complaint then the Forum cannot pass any verdict on merit. Section 11 of the Consumer Protection Act, 1986 is relating with the pecuniary as well as territorial jurisdiction of the District Consumer Disputes Redressal Forum, that laid down as follows-
“11. Jurisdiction of the District Forum– [(1)] Subject to the
other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed does not exceed rupees twenty lakhs.”
[6] The learned Advocate for the complainants argued before me that as per the provisions of Maharashtra Ownership Flats Act there are obligations on builder to execute the agreement as well as to deliver the possession of the flat. In such circumstances irrespective with the value of the flat this Forum has jurisdiction to entertain the complaint as the Forum has to decide deficiency in service and it has no concern with the value of the flat. In that context the learned Advocate for the complainant relied upon the ruling in case of Maria Philomina Pereira vs. M/s Rodrigues Construction reported in AIR 1991 Bombay 27. That suit was relating to the mandatory injunction as regards the flat which was filed in City Civil Court, Mumbai and City Civil Court has returned the plaint by holding that the consideration mentioned in the agreement is above Rs.87,000/-. In that ruling it has been observed that where the flat purchaser wants the promoter to enforce the obligations under MOFA Act. The suit was relating to mandatory injunction and in that context it is observed that the Civil Court has jurisdiction to entertain the said suit.
[7] It is significant to note that the complainant has sought possession of the flat in the present complaint. It cannot be said by any stretch of imagination that the relief of possession is equivalent with the enforcement of the obligations. Hence the ruling which is cited by the learned Advocate for the complainant is not helpful to adjudicate the dispute between the parties.
[8] As regards the point of jurisdiction the reliance can be placed upon the Judgment of the Hon’ble State Consumer Disputes Redressal Commission, Maharashtra in complaint No. 08/159 between Mr. Jayesh G. Shah v/s. M/s. Anamika Real Estate Pvt. Ltd. Co. decided on 6/1/2012. That complaint was also relating to the deficiency in service on the part of the developer and builder for not handing over possession of the flat agreed to be purchased by the complainant. The complainant had valued that complaint for Rs.1 Crore and asked further compensation of Rs. 5 lakh for mental agony and torture and also asked compensation @ Rs.25,000/- per month for delayed possession from the date of filing of complaint till possession is received. In that complaint it has been observed that the valuation of the flat as well as compensation and deficiency of service is more than one crore then the State Commission has no jurisdiction to entertain the said complaint and the complaint was returned to the complainant for presenting the same before the Hon’ble National Consumer Disputes Redressal Commission.
[9] In the same context reliance can be placed upon the ruling of Hon’ble National Consumer Disputes Redressal Commission in case of Kishori Lal Bablani v/s. Aditya Enterprises & Ors. reported in (2012) CPJ 682 (NC). In that ruling it has been observed that the valuation of the flat which has been shown by the complainant is Rs.40,70,000/- hence the Hon’ble National Consumer Disputes Redressal Commission has no jurisdiction to entertain the said complaint and it should be presented before the State Commission and that complaint was returned to the complainant for presenting the same before the proper Forum.
[10] Jurisdiction of the Forum is restricted as per the valuation. The valuation is having two aspects. One is for pecuniary jurisdiction and another is for the purpose of court fee. In certain disputes, valuation for the purpose of pecuniary jurisdiction and court fee is the same. The present dispute is relating with deficiency in service. If non delivery of possession of flat is considered as deficiency in service, then the valuation of the subject matter should be the market price or agreed price of the flat. The Consumer Protection Act, 1986 provides different court fee for adjudicating the disputes between consumer and service providers. In Civil disputes, the valuation of the property for the purpose of jurisdiction may differ from the valuation for the purpose of court fee. Such is not the case in the consumer dispute. Moreover if for any technical reason delivery of possession of flat become impossible, complainants are entitled for compensation which is equivalent to price of the flat. In such circumstances, this Forum held that the valuation of the dispute includes the agreed price of the flat + valuation of deficiency in service. Admittedly the value of the property is more than Rs.20,00,000/-. Hence this Forum held that the complainants have knocked wrong door. They have to approach Hon’ble State Consumer Disputes Redressal Commission for the relief which they have sought. In the light of the above discussion as the value of the service as regards delivery of possession is more than Rs.20,00,000/- this Forum has no jurisdiction in view of section 11 of the Consumer Protection Act, 1986.
Hence I answer the points accordingly and pass the following order-
:- ORDER :-
1. This Forum has no jurisdiction to entertain the present complaint as the valuation of the deficiency in service is more than Rs.Twenty Lakh. Hence complaint is returned to the complainant for presenting the same before the Hon’ble State Consumer Disputes Redressal Commission, Maharashtra within one month.
2. As per the peculiar circumstances there is no order as to costs.
3. Both parties are directed to collect the sets which are provided for the Hon’ble Members within one month from the date of order. Else those will be destroyed.
Copy of order be supplied to both the parties free of cost.
Place- Pune
Date – 29/08/2013
[S. M. Kumbhar] [V. P. Utpat]
Member President
